B-160445, AUG. 24, 1967

B-160445, AUG. 24, 1967

PER DIEM - MILITARY PERSONNEL - TRAINING DUTY OF RESERVISTS DECISION TO SECY. OF ARMY CONCERNING ENTITLEMENT OF RESERVE MEMBERS TO PER DIEM WHEN MOST OF THE ACTIVE DUTY FOR TRAINING IS SPENT AT A LOCATION OTHER THAN THE REPORTING STATION. RESERVISTS WHO ARE ORDERED TO ACTIVE DUTY FOR TRAINING FOR SHORT PERIODS AND WHO AFTER REPORTING TO DUTY ARE ORDERED TO ANOTHER LOCATION FOR PRACTICALLY THE ENTIRE PERIOD OF DUTY MUST HAVE SECOND LOCATION REGARDED AS THE PLACE WHERE THE PRIMARY DUTY IS PERFORMED SO THAT THE MEMBERS WERE NOT AWAY FROM THEIR BASIC POST OF DUTY AND ARE NOT ENTITLED TO PER DIEM. THE FACT THAT MEMBERS OF ANOTHER GROUP PERFORMING SIMILAR DUTIES AT VARIOUS LOCATIONS MAY HAVE BEEN ENTITLED TO PER DIEM BECAUSE THE MAJORITY OF DUTY WAS NOT AT ANY ONE LOCATION DOES NOT AFFORD BASIS FOR PER DIEM IN STANT CASE. SEE 41 COMP. GEN. 726 28 COMP. GEN. 166

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 22, 1967, FROM THE UNDER SECRETARY OF THE ARMY REQUESTING A DECISION AS TO PER DIEM ENTITLEMENT WHEN MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES ARE ORDERED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF SHORT DURATION AND AFTER REPORTING TO THE TRAINING STATION ARE ORDERED TO ANOTHER LOCATION WHERE PRACTICALLY THE ENTIRE PERIOD OF ACTIVE DUTY IS PERFORMED. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 67-20 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY REFERS IN PARTICULAR TO SIX ARMY RESERVISTS, MEMBERS OF THE 2153D CORPS AUGMENTATION UNIT, INDIANTOWN GAP MILITARY RESERVATION, WHO BY ORDERS ISSUED ON MARCH 2, 1966, BY HEADQUARTERS XXI UNITED STATES ARMY CORPS, INDIANTOWN GAP MILITARY RESERVATION, ANNVILLE, PENNSYLVANIA, WERE ORDERED TO ANNUAL ACTIVE DUTY FOR TRAINING AT INDIANTOWN GAP MILITARY RESERVATION FOR 13 DAYS BEGINNING APRIL 17, 1966, PLUS ALLOWABLE TRAVEL TIME. BY ORDERS OF THE SAME HEADQUARTERS DATED APRIL 11, 1966, THESE MEMBERS WERE ASSIGNED TO TEMPORARY DUTY AT THE U.S. ARMY RESERVE CENTER IN READING, PENNSYLVANIA, FOR THE PERIOD APRIL 19 THROUGH 28, 1966, FOR THE PURPOSE OF RENDERING ADMINISTRATIVE ASSISTANCE TO THE XXI CORPS SRF UNITS WITHIN THE READING AREA, UPON COMPLETION OF WHICH THEY RETURNED TO INDIANTOWN GAP MILITARY RESERVATION. GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE IN THE READING AREA.

IN DECISION OF DECEMBER 7, 1966, B-160445, COPY ENCLOSED, ADRESSED TO ONE OF THE MEMBERS WE HELD THAT PER DIEM WAS NOT PAYABLE FOR THE REASON THAT SINCE THESE MEMBERS WERE ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF SHORT DURATION AND WERE FURTHER ORDERED TO ANOTHER LOCATION WHERE PRACTICALLY THE ENTIRE PERIOD OF ORDERED DUTY WAS PERFORMED, THE SECOND LOCATION WAS IN FACT THE TRAINING STATION AND THE MEMBERS COULD NOT BE CONSIDERED AWAY FROM THEIR DESIGNATED POST OF DUTY FOR ENTITLEMENT TO PER DIEM, CITING DECISION OF MAY 3, 1962, B-148049, 41 COMP. GEN. 726.

THE UNDER SECRETARY STATES THAT THE FACTUAL SITUATION CONSIDERED IN THE DECISION OF MAY 3, 1962, DIFFERS FROM THE ONE HERE INVOLVED FOR REASONS AS FOLLOWS:

"THE 2153D CORPS AUGMENTATION UNIT (USAR) PERFORMED ANNUAL ACTIVE DUTY FOR TRAINING (ANACDUTRA) AT INDIANTOWN GAP MILITARY RESERVATION (IGMR) FROM 17 TO 29 APRIL 1966. SINCE THE MISSION OF THIS UNIT IS TO SUPPORT THE XXI U.S. ARMY CORPS STAFF, IGMR WAS SELECTED AS THE ANACDUTRA TRAINING SITE AND THE UNIT MEMBERS REPORTED TO IGMR. SELECTED PERSONNEL ADMINISTRATIVE SPECIALISTS OF THE ADJUTANT GENERAL SECTION OF THE CORPS AUGMENTATION UNIT WERE ASSIGNED TO SUPPORT CORPS SELECTED RESERVE FORCE (SRF) UNITS TO MEET THE URGENT REQUIREMENT AT THAT TIME OF UPDATING SRF UNIT PERSONNEL RECORDS TO MOBILIZATION READINESS.

"THE SELECTED MEMBERS OF THE CORPS AUGMENTATION UNIT WERE FORMED INTO TWO TEAMS. PRIOR TO THE DEPARTURE OF THE TEAMS FROM IGMR, THE PERSONNEL WERE BRIEFED BY THE CORPS PERSONNEL DIVISION CONCERNING MOBILIZATION REQUIREMENTS OF SRF UNITS. ONE TEAM SUPPORTED THREE SRF UNITS IN OIL CITY, FARRELL, AND BUTLER, PENNSYLVANIA, AND THE OTHER TEAM SUPPORTED THREE SRF UNITS IN READING, PENNSYLVANIA. ACCORDINGLY, ORDERS WERE ISSUED BY THE CORPS HEADQUARTERS. (ENCLOSURE 1). THE TEAM MEMBERS SERVING THREE USAR CENTERS (OIL CITY, FARRELL, AND BUTLER, PA.) WERE AUTHORIZED PER DIEM IN ACCORDANCE WITH COMPTROLLER GENERAL DECISION B-138219, DATED 9 MAY 1960 (39CG753) SINCE THEY PERFORMED DUTY AT MORE THAN ONE LOCATION. THE READING TEAM MEMBERS ASSISTED THREE SRF UNITS, ALL LOCATED AT THE READING USAR CENTER, AND WERE NOT AUTHORIZED PER DIEM IN ACCORDANCE WITH ADVANCE DECISION BY THE GENERAL ACCOUNTING OFFICE, ON THE BASIS OF 41CG726. GOVERNMENT QUARTERS OR MESSING FACILITIES WERE NOT AVAILABLE TO MEMBERS OF EITHER TEAM AT THEIR TEMPORARY DUTY LOCATIONS. READING, PA., IS 33 MILES FROM IGMR AND NO QUARTERS OR MESSING FACILITIES WERE AVAILABLE CLOSER THAN IGMR. TO HAVE THE TEAM PROCEED FROM AND RETURN TO IGMR DAILY WOULD HAVE BEEN IMPRACTICAL. BOTH TEAMS RETURNED TO IGMR AT END OF THEIR TEMPORARY DUTY PERIOD AND REPORTED TO XXI CORPS HEADQUARTERS WHAT WAS ACCOMPLISHED DURING THIS PERIOD.'

THE UNDER SECRETARY EXPRESSES THE BELIEF THAT THIS DUTY IS SIMILAR TO THAT CONSIDERED IN DECISION OF SEPTEMBER 14, 1948, B-79676, 28 COMP. GEN. 166, IN THAT THE TEMPORARY DUTY PERFORMED BY BOTH USAR PERSONNEL ADMINISTRATIVE TEAMS WAS TO ASSIST CORPS HEADQUARTERS TO PREPARE SRF UNITS FOR MOBILIZATION; THAT ORDERS WERE ISSUED DIRECTING THE PERSONNEL TO PROCEED FROM THE INITIAL PLACE TO ANOTHER PLACE FOR TEMPORARY DUTY AND UPON COMPLETION RETURN TO THE ORIGINAL STATION AND THE ORDERS TO READING FOR TEMPORARY DUTY WERE NOT ISSUED SOLELY FOR THE PURPOSE OF PAYING PER DIEM FOR THE DUTY THERE. ALSO, HE STATES IT IS APPARENT FROM THAT DECISION THAT IF A RESERVIST UNDER COMPETENT ORDERS IS DIRECTED TO PROCEED FROM THE PLACE TO WHICH HE WAS ORDERED FOR ACTIVE DUTY TO ANOTHER PLACE FOR TEMPORARY DUTY UPON COMPLETION OF WHICH HE IS TO RETURN TO THE FORMER PLACE, HE WOULD, DURING THE PERIOD OF HIS TEMPORARY ADDITIONAL DUTY, BE TRAVELING AWAY FROM HIS DESIGNATED POST OF DUTY.

SECTION 404 (A) OF TITLE 37, U.S. CODE, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF STATION, OR OTHERWISE, OR "WHEN AWAY FROM HIS DESIGNATED POST OF DUTY," REGARDLESS OF THE LENGTH OF TIME INVOLVED. SECTION 411 (C) OF TITLE 37, U.S. CODE, AUTHORIZES THE SECRETARIES CONCERNED TO DETERMINE WHAT SHALL CONSTITUTE A "TRAVEL STATUS.' PARAGRAPH M3050 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS. THE WORDS "TEMPORARY DUTY" ARE DEFINED IN PARAGRAPH M3003-2 OF THE REGULATIONS TO MEAN DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT OR RETURN TO THE OLD STATION. PER DIEM IS PAYABLE FOR TEMPORARY DUTY DIRECTED TO BE PERFORMED AWAY FROM THE PLACE OF BASIC DUTY ASSIGNMENT.

WITH REFERENCE TO MEMBERS OF RESERVE COMPONENTS ORDERED TO ACTIVE DUTY FOR TRAINING WITH PAY, PARAGRAPH M6001 OF THE JOINT TRAVEL REGULATIONS SPECIFICALLY PROVIDES THAT "PER DIEM ALLOWANCES ARE NOT PAYABLE FOR ANY PERIOD A MEMBER IS AT HIS TRAINING DUTY STATION, EXCEPT THE DAY OF ARRIVAL AND DEPARTURE THEREFROM.' IN DECISION OF APRIL 2, 1959, B-138219, 38 COMP. GEN. 656, WE HELD THAT WHAT CONSTITUTES A MEMBER'S DESIGNATED POST OF DUTY IS A QUESTION OF FACT, THE DETERMINATION OF WHICH IS TO BE MADE WITH THE ASSISTANCE OF ANY COMPETENT AVAILABLE EVIDENCE TO ESTABLISH THE PLACE WITHIN WHICH HE MUST PERFORM HIS BASIC DUTY ASSIGNMENT.

IN THE DECISION OF SEPTEMBER 14, 1948, INVOLVING NAVAL RESERVE PERSONNEL WHO WERE ORDERED TO A SPECIFIC LOCATION IN CONNECTION WITH THE ORGANIZATION, ADMINISTRATION AND TRAINING OF NAVAL RESERVES AND WHO SUBSEQUENTLY WERE ORDERED TO ONE OR MORE OTHER LOCATIONS FOR TEMPORARY ADDITIONAL DUTY UPON COMPLETION OF WHICH THEY WERE TO RETURN TO THE FORMER PLACE WE CONCLUDED THAT SUCH PERSONNEL WOULD BE AWAY FROM THEIR DESIGNATED POSTS OF DUTY WHILE PERFORMING SUCH TEMPORARY ADDITIONAL DUTY. THERE WAS NOTHING TO INDICATE THAT THE MAJOR PORTION OF THE DUTY WOULD BE PERFORMED AT A LOCATION AWAY FROM THE INITIAL STATION. WHILE PER DIEM WAS AUTHORIZED IN THAT SITUATION IT WAS POINTED OUT THAT NOTHING THEREIN WAS TO BE CONSTRUED AS APPROVING ANY PRACTICE OF ORDERING PERSONNEL TO TEMPORARY ACTIVE DUTY AT A PLACE OTHER THAN THE PLACE IT IS INTENDED THEIR PRIMARY DUTIES WILL BE PERFORMED AND SUBSEQUENTLY ORDERING THEM TO A PLACE WHERE THEIR PRIMARY DUTIES ACTUALLY WILL BE PERFORMED SOLELY FOR THE PURPOSE OF PAYING PER DIEM AT THE LATTER PLACE. AND, IN DETERMINING A MEMBER'S ENTITLEMENT, WE SAID THAT THERE WOULD BE FOR CONSIDERATION THE TIME SPENT BY THE MEMBER AT THE PLACE ORDERED TO DUTY AND THE RELATIVE DURATION OF THE TIME SPENT AT OTHER PLACES ON TEMPORARY ADDITIONAL DUTY.

IN THE DECISION OF MAY 3, 1962, WHERE MEMBERS OF THE NEW YORK AIR NATIONAL GUARD WERE ORDERED TO A 15-DAY TOUR OF ACTIVE TRAINING DUTY AT BROOKLYN, NEW YORK, AND PURSUANT TO SUBSEQUENT ORDERS PERFORMED 12 DAYS OF THE DUTY AT READING, PENNSYLVANIA, WE HELD THAT READING WAS IN FACT THE TRAINING DUTY STATION AND THE MEMBERS COULD NOT BE CONSIDERED AWAY FROM THEIR DESIGNATED POST OF DUTY FOR PER DIEM PURPOSES WHILE AT READING. THAT DECISION WE ADVISED THE SECRETARY OF THE AIR FORCE THAT WHEN MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES ARE ORDERED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF SHORT DURATION AND AFTER REPORTING TO THE TRAINING STATION ARE ORDERED TO ANOTHER LOCATION WHERE PRACTICALLY THE ENTIRE PERIOD OF ORDERED DUTY IS PERFORMED, THE LATTER LOCATION IS IN FACT THE DUTY STATION AND NO PER DIEM MAY BE PAID FOR DUTY AT SUCH LOCATION.

IN THE PRESENT CASE SINCE THE MEMBERS WERE ORDERED TO INDIANTOWN GAP MILITARY RESERVATION FOR 13 DAYS (PLUS TRAVEL TIME) BEGINNING APRIL 17, 1966, AND BY SUBSEQUENT ORDERS WERE PLACED ON TEMPORARY DUTY AT READING FOR THE PERIOD APRIL 19 THROUGH 28, 1966, IT IS CLEAR THAT THE MAJOR PORTION OF THE DUTY ACTUALLY WAS PERFORMED AT READING. WHILE THE PURPOSE OF THE SECOND ORDERS MAY NOT HAVE BEEN SOLELY TO PAY PER DIEM, WE BELIEVE THE FACTUAL SITUATION CLEARLY ESTABLISHES THAT READING WAS THE PLACE WHERE THE PRIMARY DUTY WAS PERFORMED. THUS, THE MEMBERS WERE NOT AWAY FROM THEIR BASIC POST OF DUTY AND ARE NOT ENTITLED TO PER DIEM.

THE FACT THAT THE MEMBERS OF ANOTHER TEAM PERFORMING A SIMILAR MISSION AT VARIOUS OTHER LOCATIONS MAY HAVE BEEN ENTITLED TO PER DIEM BECAUSE THE MAJORITY OF THEIR TRAINING DUTY WAS NOT PERFORMED AT ANY ONE LOCATION OTHER THAN THE DESIGNATED TRAINING DUTY STATION AFFORDS NO BASIS FOR MAKING LIKE PAYMENTS TO THE MEMBERS OF THE TEAM AT READING SINCE, IN DETERMINING EACH MEMBER'S ENTITLEMENT, THERE IS FOR CONSIDERATION THE CIRCUMSTANCES UNDER WHICH THE DUTY IS PERFORMED AS WELL AS THE TERMS OF THE ORDERS DIRECTING THE DUTY.

ACCORDINGLY, THE DECISION OF DECEMBER 7, 1966, IS AFFIRMED.

IT MAY BE STATED THAT THERE IS PRESENTLY BEFORE THE CONGRESS FOR CONSIDERATION A BILL, H.R. 2, THE STATED PURPOSE OF WHICH IS TO STRENGTHEN THE RESERVE COMPONENTS OF THE ARMED FORCES. SECTION 104 OF THE BILL WOULD AMEND SECTION 404 (A), TITLE 37, U.S. CODE, BY ADDING A FOURTH CLAUSE. SHOULD SECTION 404 (A) BE AMENDED AS PROPOSED, IT WOULD READ IN MATERIAL PART AS FOLLOWS:

"UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS * * *.

"/4) WHEN AWAY FROM HOME TO PERFORM DUTY, INCLUDING DUTY BY A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES, AS THE CASE MAY BE, IN HIS STATUS ASA MEMBER OF THE NATIONAL GUARD, FOR WHICH HE IS ENTITLED TO, OR HAS WAIVED, PAY UNDER THIS TITLE.'

HOUSE OF REPRESENTATIVES REPORT NO. 13 TO ACCOMPANY THE BILL INDICATES THAT IT IS NOT INTENDED, HOWEVER, THAT RESERVISTS WOULD RECEIVE PER DIEM FOR PERFORMANCE OF THEIR TWO WEEKS OF ANNUAL ACTIVE DUTY FOR TRAINING AT AN INSTALLATION WHERE QUARTERS AND MESSING FACILITIES ARE IN FACT AVAILABLE.